Employers: Limit FMLA Liability by Making Them Pick Only One From the Menu

03 March 2014 Labor & Employment Law Perspectives Blog

A recent federal appellate court decision illustrates how employees may limit their rights by affirmatively choosing to designate time-off as vacation time rather than as leave protected by the Family and Medical Leave Act (FMLA). In the recent case, the United States Court of Appeals for the Ninth Circuit upheld a jury’s verdict in favor of an employer that had fired an employee for violating its “three day no-show, no-call rule” after she failed to return to work following a two-week trip to take care of her ailing father. The ruling provides three practical lessons for employers:

(1) Employers Must Affirmatively Notify Employees Of Their FMLA Rights

In the decision, the employer was well positioned to defend itself because its supervisors affirmatively notified the former employee of her right to take FMLA leave. After she requested vacation because her father was “no good” and in a “hospital in Guatemala,” the supervisors wisely did not let the discussion end there. Instead, they recognized the duty to notify the employee of her right to FMLA leave, which was triggered regardless of the employee’s failure to expressly mention “family leave” or the “FMLA.” Her supervisors asked the employee to clarify her leave request in writing and followed up by assigning a Spanish-speaking supervisor to discuss it with her. In Spanish, the employee clarified that she preferred to use vacation time rather than family leave to care for her father.

(2) Supervisors Would Have Been Wise To Ask The Employee To Confirm Her Choice In Writing

Though the employer ultimately prevailed, it did so only after lengthy discovery, a six-day jury trial, and the employee’s unsuccessful appeal to the Ninth Circuit. The company could not obtain a speedier resolution of the case because it was a classic “he said, she said” regarding whether or not she told her supervisors she did not want to take FMLA leave. Had it documented the employee’s expressed wish not to take FMLA, the employer likely would have prevailed in the lawsuit much sooner because written evidence often disposes of “he said, she said” possibilities before they get to the jury.

(3) Implications for Policies Requiring Concurrent Exhaustion of Vacation and FMLA Leave

The recent decision highlights an oftentimes overlooked aspect of policies requiring concurrent exhaustion of vacation leave and FMLA leave. Where such a policy exists, and the employee initially declines FMLA leave, he or she preserves more leave – though not protected leave – than if she initially accepted the FMLA leave. For example, if an employee exhausts two weeks of vacation time concurrently with the first two weeks of FMLA leave, that employee is left with up to 10 weeks of FMLA leave upon exhaustion of vacation time. In contrast, an employee who initially declines FMLA, but requests it upon exhaustion of two weeks of vacation, preserves a total of up to 14 weeks of leave. However, only the time the employee takes as leave designated under the FMLA is protected leave. Additionally, and as the recent decision illustrates, the employee’s trade-off for using vacation first to create additional leave time is reduced legal protection if he or she fails to return from the initial period of vacation leave without requesting an extension of leave under the FMLA.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights